encounter
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This article is written by R Sai Gayatri, pursuing BA.LLB from Post Graduate College of Law, Osmania University. This article deals extensively with fake encounters in India and the Ishrat Jahan case. 

Introduction 

‘Encounter’ which is also known as extrajudicial killing or extrajudicial execution refers to the killing of a person carried out by lawful authorities, lacking approval or permission from the judiciary. You must have come across many news channels that flash the word ‘encounter’ in a very heroic pattern, causing you to appreciate the officers who had done the encounter and served instant justice. I am not going to lie, I was of the same opinion too. Why go round and round with the complex legal system when you have the criminal standing right in front of you and you for a reason ‘believe’ that the crime has been caused by the same person? Just execute the criminal and voila you have delivered justice. But, is just ‘believing’ enough of a reason to kill a person? Are all encounters completely legal and justifiable? Maybe there are certain cases where the encounters were more personal than doing one’s duty. Let us understand the concept of fake encounters in this article. 

Fake encounter: the need to stop such steps

Various Indian legislations provide a legal basis for encounters. The law states that a police officer shall have the right to kill a criminal in two cases, first – if the situation is such that the police officer has to exercise his right to self-defense and failing to do so would put his life in danger and second, where the situation is such that it is imperative to take action to maintain peace, order and avoid further damage of any kind.

The Indian Penal Code, 1860 states that every individual has the right to private defence of body and property. Sections 96-106 of the said Code deal with various kinds of private defence.

In the words of Justice Venkatachaliah – “Under the scheme of criminal law prevailing in India, it would not be an offence if death is caused in the exercise of the right of private defence.”

The Criminal Procedure Code, 1973 states under Section 46 the conditions where a police officer may proceed to kill a criminal. The criminal must be accused of an offence punishable with imprisonment for life or death.

Encounter killings, prima facie, seem to be a great system of disposing of cases by delivering justice to the parties immediately but when looked closely there seem to be many loopholes in such cases. Is skipping trails and avoiding the participation of the judiciary always a wise thing to do? This question brings us to the topic of fake encounters and the need to stop such killings.

Fake encounters refer to the plotted/framed killings or killings motivated by some underlying reason(s) that do not come under the purview of doing one’s official duty faithfully. It is as if a criminal has a licensed gun in his hand. The encounter rate kept increasing in India, this caught the attention of the National Human Rights Commission(NHRC) which started an investigation regarding the encounters in the state of Uttar Pradesh. Simultaneously, the Supreme Court of India took the issue of extrajudicial killings into its hands in the case of PUCL v. State of Maharashtra

People’s Union for Civil Liberties (PUCL) v State of Maharashtra (CDJ 2014 SC 831)

The Mumbai police had carried out ninety-nine encounters that caused the death of 135 persons in a span of two years, from 1995-1997. PUCL in this matter requested the Court to rule out whether all those encounters were genuine or not.

As requested, the Supreme Court under the guidance of CJI RM Lodha along with Justice Rohinton Nariman engineered certain guidelines that were to be followed to investigate the matters of encounters leading to death. A detailed and independent investigation was to be done in accordance with these guidelines as an established procedure.

The following are the guidelines:

  1. Tip-offs regarding any sort of criminal activities must be recorded, such recording must either be done in writing form or electronic form.
  2. If according to a tip-off, the police uses firearms and it causes the death of a person, then the criminal investigation must be registered by initiating an FIR.
  3. An independent CID team must lead the investigation of such death. Such a CID team must fulfill certain investigation requirements.
  4. A magisterial inquiry must be mandatorily done in all cases of encounter killings.
  5. Prompt information regarding the encounter killing must be given to the State Commission or the National Human Rights Commission.
  6. The magistrate must record the statement of the criminal and must provide medical assistance to him/her.
  7. FIR and diary entries of the police must be forwarded to the Court immediately.
  8. The trial must be conducted properly and expeditiously.
  9. The kin of the person killed in the encounter must be informed of his death.
  10. NHRC and State Commissions must be provided with bi-annual statements of encounter killings.
  11. Any police officer who is found guilty of an unlawful encounter must be suspended and disciplinary action must be taken against him.
  12. The kin of the person whose death was caused due to the encounter must be awarded compensation as per the Criminal Procedure Code, 1973.
  13. As per Article 20 of the Indian Constitution, any weapons used by the police must be surrendered.
  14. The kin of the police officer who carried out the encounter must be informed of the situation and the police officer must be provided with the services of a lawyer.
  15. The police officers shall not be awarded any out of turn gallantry awards for encounter killings.
  16. In case the above guidelines are not followed properly then the kin of the person whose death has been caused may complain to the sessions judge. Accordingly, action must be taken by the sessions judge. 

Looking into the Ishrat Jahan case 

17 years ago, on 15th June, 2004, Ishrat Jahan, a 19-year-old woman from Mumbai – was killed in a police encounter along with Javed Shaikh alias Pranesh Pillai, Zeeshan Johar and Amjad Ali Akbarali Rana near Ahmedabad. The Gujarat police stated that all four who were killed were terrorists whose plan was to assassinate the then Gujarat Chief Minister, Narendra Modi. Whether the said encounter was genuine or was it a cold-blooded murder done in the name of an encounter was the question lying before the court. 

Contentions of parties to the case 

Contentions from the side of Ishrat Jahan 

Ishrat’s family, especially her mother has always stated that Ishrat is innocent. She further stated that the Gujarat police plotted the killing of her daughter. Shamima Kausar, Ishrat Jahan’s mother went on and filed a writ petition in the Gujarat high court seeking a CBI inquiry in the killing of her daughter. When the Gujarat High Court directed a Special Investigation Team (SIT) to carry out an investigation, SIT reported that it was a staged encounter.

The report further stated that the four members were in the custody of the police even before the encounter took place. It was also claimed that the encounter was planned and shown as a joint operation of the Gujarat police and the Central Intelligence Bureau. After the report of SIT was issued, the Supreme Court ordered the CBI to investigate the case and it led to filing a charge-sheet against many Gujarat police officers for their connection with the said encounter.

Contentions of the Gujarat Police 

The Gujarat police stated that the four people who were killed in the encounter were terrorists who were working under the terrorist organization, Lashkar-e-Taiba(LeT). Furthermore, the police also stated that the main motive of the ones killed in the encounter was to assassinate Narendra Modi who was the then chief minister of Gujarat. The Gujarat police claimed that the encounter was carried out based on the information received by them from intelligence. An affidavit of the Home Ministry stated that Ishrat Jahan was a LeT operative based on the fact that the interrogation of David Headly (FBI of the United States of America) proved the fact that Ishrat Jahan was a suicide bomber in addition to the other three members. 

The findings of the court 

After extensive proceedings and trials in the Gujarat High Court, the Supreme Court and the Special CBI Court, based on the information gathered, seven police officials were arrested in relation to the encounter. Starting with G.L Singhal arrested in 2013 – discharged in 2021, P.P. Pandey arrested in 2013 – released in 2015 – discharged in 2018, D.G Vanzara arrested in 2013 – discharged in 2019, N.K. Amin – discharged in 2019, Tarun Barot – discharged in 2021, Anaju Chaudhary – discharged in 2021 and J.G. Parmar – died in 2020 during the hearings. The release of all the police officials establishes that the encounter was in fact not staged. 

The court through its order in October 2020 stated that the police officers have acted rightfully as required by their official duty. Accordingly, the said police officers will not be dragged into any proceedings or trials in connection with the encounter. The question whether Ishrat Jahan and the other three members with her were actually members of the LeT or not has been answered by the CBI court stating that there was nothing on record which stated that the four members did not belong to LeT. 

How do the findings of the court clear out existing confusion? 

For seventeen years, the Ishrat Jahan case was a legal battle between a mother who was left with nothing but darkness as an answer to her question as to who had killed her daughter and why is she being linked with the LeT and on the other side were the arrested police officers who were struggling to establish that the encounter was genuine and Ishrath Jahan was a member of the LeT. From the evidence, testimonies and arguments presented before the court, the final verdict has been given that the Ishrat Jahan encounter was genuine and therefore the arrested police officers were discharged. 

Recognizing the difference between fake and real encounters 

Encounters have really become controversial in India. Though the laws are stringent, there are still ways through which some officials get away with fake encounters. As the circumstances in which the encounter took place, the evidence, testimonies are unique to each encounter case, one cannot prima facie say whether an encounter was genuine or not. However, the guidelines laid down in the case of PUCL v. State of Maharashtra can be used to investigate the cases of fake encounters. In the case of encounters, one should not jump to conclusions just because a police officer or any official for that matter is stating so, as you might just excuse a cold-blooded murder to an act of bravery. 

Encounters are often glorified and justified by the government and the public as well, the police officers are highly regarded as ‘encounter specialists’ for that matter. It is the duty of the government and the courts to be unbiased when investigating such encounter cases. It is inevitable to part ways with crime in this world, there will always be situations where a person is forced to take grave steps to protect his own life or to exercise his right of private defense. But, it must not open gates for criminals to get away with their heinous crimes. 

Conclusion 

Encounter serves as an immediate redressal mechanism as the execution of the criminal is done without any delay. It skips the legal chains that keep the case tied to the courts for years together. The matter is ‘closed’ while it is still a burning matter among the public. Maybe encounters in India are famous because of their spontaneous nature, it seems like a win-win situation for both the police officer(s) and the public. But as every coin has its two sides, encounter too is both a boon and a bane in India.

The increasing rate of fake encounters establishes nothing but an increasing crime rate, but can it be excused just because it has the veil of uniform wrapped around it? Maybe it’s time that we look at encounters the same way as we look at other crimes and then we will be able to understand whether an encounter was actually needed and genuine or if it was fuelled by some other underlying reasons. 

References 


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